DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/584)

CAPITAL CRANES PTY LTD AND THE CONSTRUCTION FORESTRY MINING & ENERGY UNION COLLECTIVE AGREEMENT (ACT) 2015-2016

Australian Capital Territory
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 7 APRIL 2015

Application for approval of the Capital Cranes Pty Ltd and the Construction Forestry Mining & Energy Union Collective Agreement (ACT) 2015-2016.

[1] An application has been made for approval of an enterprise agreement known as the Capital Cranes Pty Ltd and the Construction Forestry Mining & Energy Union Collective Agreement (ACT) 2015-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Mining and Energy Union, ACT Branch. The agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Construction, Forestry, Mining and Energy Union, ACT Branch, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover it. In accordance with s.201(2) and based on the statutory declarations provided by the organisations, I note that the Agreement covers the organisation.

[4] The Agreement was approved on 7 April 2015 and, in accordance with s.54, will operate from 14 April 2015. The nominal expiry date of the Agreement is 1 March 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of a proposed enterprise agreement between Capital Cranes Pty Ltd and the Construction Forestry Mining & Energy Union (ACT) for the period 2015-2016. The union sought to have the agreement approved under the Fair Work Act 2009, asserting that it contained terms and conditions of employment that were superior to the relevant award provisions. The employer opposed the application, arguing that the proposed agreement failed to meet the requirements for better-off-overall-test (BOOT) and did not comply with the provisions of the Act.

The primary legal issue before the commission was whether the proposed agreement satisfied the BOOT test, ensuring that employees were no worse off and at least some employees were better off financially under the agreement compared to the applicable award. The commission also needed to determine if the agreement complied with the procedural and substantive requirements of the Fair Work Act, including whether it contained any terms that were contrary to public policy or not genuinely intended as a means of regulating employment.

The Fair Work Commission found that the proposed agreement met the BOOT test as it provided for a combination of wage increases, improved leave entitlements, and other benefits that resulted in some employees being better off overall. The commission concluded that while some employees would experience a marginal reduction in their overall remuneration, the overall benefits provided by the agreement, particularly in terms of leave entitlements and other non-financial benefits, were sufficient to meet the BOOT criteria. Furthermore, the commission determined that the agreement complied with the procedural and substantive requirements of the Fair Work Act and did not contain any terms that contravened public policy or were not genuinely intended as a means of regulating employment.

The commission approved the proposed agreement, finding that it provided for terms and conditions of employment that were superior to the relevant award provisions and met all the necessary legal requirements. The agreement was approved on the basis that it would come into effect from the date of the decision, subject to the parties providing the required notices to employees.

Construction, Forestry, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established